DISTRIBUTION OF LEGISLATIVE POWER IN INDIA

The distribution of powers is an essential feature of federalism. The object for which a federal state is formed involves a division of authority between the Central Government and separate states. A Federal Constitution establishes the dual polity with the union at the centre and the states at a periphery, each endowed with sovereign powers to be exercised in the field assigned to them respectively by the constitution. “The one is not subordinate to the other in its own field; the authority of one is co-ordinate with that of other”. In fact, the basic principle of federation is that the legislative, executive and financial authority is divided between the centre and state not by any law passed by the centre but by constitution itself. The nature of distribution of power varies according to the local and political background of each country.Our Constitution makers followed the Canadian scheme opting for strong center. The Government of India Act, 1935 introduced a scheme of three fold distribution viz., Federal, Provincial and Concurrent.

The present Constitution, based on the principle of federalism with a strong and indestructible union, adopts the method followed by the Government of India Act, 1935 and has a scheme of two fold distribution of legislative powers- with respect to territory; and with respect to subject matter. With respect to subject matter, The Constitution adopts a three-fold distribution of legislative powers by placing them in any of the three lists, namely, Union List, State List and Concurrent List.

In the atomic and hydrogen age, nobody can visualize today the longer term developments and exigencies of the govt . To meet this difficulty, the Constitution has laid down the formula by which the residue, the themes not mentioned in any of the lists belongs to the Centre exclusively. Article 248 lays down during this context, “Parliament has exclusive power to form any law with reference to any matter not enumerated within the Concurrent List or State List”.To effect all these provisions in the Constitution is to invest exclusively in the Centre any residuary power of legislation.

Parliament’s power to legislate on State Subjects:

Though in normal times, the distribution of powers must be strictly maintained and neither the State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, yet in exceptional situations, the above system of distribution may be suspended. These exceptional situations are:

(1) Power of Parliament to legislate in national interest:
According to Article 249, if the Rajya Sabha passes a resolution supported by two-thirds majority that it is expedient or necessary in the national interest that Parliament should make laws with respect to any matter enumerated within State List, then it will be lawful for the Parliament to make laws for the whole or any part of the territory of India.

(2) During a proclamation of Emergency:
According to Article 250, while the proclamation of Emergency is in operation, the Parliament shall have power to make laws for the whole or any part of the territory of India with respect to matters on State List. Such a law will expire after six months on expiration of the proclamation of emergency.

(3) Parliament’s power to legislate with the consent of States:
According to Article 252, if the legislature of two or more States pass resolution to the effect that it is desirable to have a law passed by Parliament on any matter in State List, it shall be lawful for Parliament to make laws regulating that matter. Any other State may adopt such a law by passing a resolution to that effect.

(4) Parliament’s Power to legislate for having effect to treaties and international agreements:
Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions. In other words, the normal distribution of powers will not stand in the way of Parliament to pass a law to give effect to any international agreement even though such law relates to any of the subjects in the State List.

(5) In case of failure of constitutional machinery in the State:
Under Article 356 Parliament is empowered to make laws with respect to all matters in the State List when the Parliament declares that the government of the State cannot be carried on in accordance with the Constitution.It is submitted that these provisions enable the Centre to legislate in exceptional circumstances on the State subjects without amending the Constitution and thus introducing a certain amount of flexibility in the scheme of distribution of legislative powers.

Parliamentary power to provide for the establishment of certain additional courts
According to Section 247; notwithstanding anything under this chapter, the Parliament may legally provide for the establishment of any number of additional courts for improving the administration of Parliamentary laws or of any existing laws with respect to any matter in the State List (List-II).Thus, the Parliament is empowered by the provision of this Article to establish Courts or judicial bodies for better administering the laws passed by the Parliament or relating to any laws under the State List.

Residuary legislative powers
According to Article 248; Parliament is exclusively empowered to legislate with respect to any matter absent in the Concurrent List or State List. Also, such power shall include the legislative power for imposing a tax not mentioned in either of those Lists.Therefore, the Parliament has the power to make laws in relation to any matter which is not present in either the concurrent list or the State List, including the power to make laws on tax imposition.

Parliamentary legislative power for two or more States by consent and adoption of such legislation by any other State
According to Article 252; If it appears to the two or more State Legislatures that it is desirable that any of the matters with respect to which Parliament lacks any legislative power for the States except as provided under the Articles 249 and 250 should be regulated so that the States by Parliamentary law, and if resolutions are passed to that effect by all the House of those State Legislatures, it shall be lawful for Parliament to pass an Act in order to regulate that matter accordingly, and any Act so passed shall be applicable to such States and to any other State by which it is adopted later through a resolution passed in that behalf by the House or Houses of the State Legislature, as the case may be.Any Parliamentary Act can be amended or repealed solely by a Parliamentary Act passed or adopted in resembling manner but not by an act of the State Legislatures.

From the above comprehension, we can thus see Central domination over the States of the Indian Union. India, although regarded as a federation of States, cannot be regarded as truly federal. In times of emergency as well as during normal situations, the Union Parliament is always competent to supersede any State Law and prevail its own. Therefore, India can be regarded as a quasi-federal State, having a higher resemblance with Canada than the truly federal United States of America.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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